By Sharon Gold
The Kentucky Pregnant Workers Act (“the Act”), adopted in April, amends the Kentucky Civil Rights Act (“KCRA”), and expands protections for pregnant workers in Kentucky. The Act applies to employers who have 15 or more employees within the state in each of twenty or more calendar weeks in the current or preceding calendar year and any agent of the employer. It requires employers to provide reasonable accommodations, including but not limited to the need to express breast milk, to employees with limitations related to pregnancy, childbirth, or a related medical condition, unless it would pose an undue hardship on the employer. A “related medical condition” includes, but is not limited to, lactation or the need to express breast milk for a nursing child. The Act provides the following examples of reasonable accommodations:
- the need for more frequent or longer breaks;
- time off to recover from childbirth;
- acquisition or modification of equipment;
- appropriate seating;
- temporary transfer to a less strenuous or less hazardous position;
- job restructuring;
- light duty;
- modified work schedule; and
- private space that is not a bathroom for expressing breast milk.
The list is not exhaustive of potential reasonable accommodations. In order to determine whether an undue hardship exists, employers must analyze the duration of the requested accommodation and whether similar accommodations are required by policy to be made, have been made, or are being made for other employees due to any reason. Other factors already in the KCRA for determining whether an undue hardship exists are: nature and cost of accommodation, overall financial resources of the facility, number of persons employed at the facility, effect on expenses and resources, impact of accommodation upon the facility’s operations, financial resources of the covered entity, size of business with respect to number of employees, number, type and location of its facilities, type of operation of the covered entity.
The Act states that an employee shall not be required to take leave from work if another reasonable accommodation can be provided. It requires that the employer and employee engage in a timely, good faith, and interactive process to determine effective reasonable accommodations. In addition, if the employer has a policy to provide, would be required to provide, is currently providing, or has provided a similar accommodation to other classes of employees, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer.
The Act also requires employers to provide written notice of employee rights under the Act to new employees at the start of their employment and existing employees 30 days after the effective date, which will be July 27, 2019. Additionally, employers are required to conspicuously post written notice of employee rights under the Act in the workplace. The Kentucky Commission on Human Rights Commission created a poster that can be placed in the workplace and also used as notice of right. The notice is located on their website under publications at: www.kchr.ky.gov.
If you receive an accommodation request under the Act, it is wise to seek legal counsel so that they can analyze whether the request is reasonable and whether it may pose an undue hardship.